P L D 1988 Lahore 359 (PLP)

compensation. Shera son of Ahmad was, however, given the benefit of doubt and acquitted.

2. This judgment will dispose of the appeal filed by the convicted accused as also the connected murder reference.

3. The prosecution case is that on the day of occurrence i.e on 5-5-1983 Allah Ditta deceased and his wife Mst. Aisha Bibi P.W.7 were present in their house when Muhammad Afzal informed the on receipt of the said message Allah Ditta proceeded to the said Chah on his horse. At about Noon time Mst. Aisha Bibi P.W.7 and her son Abid Hussain P.W.9 proceeded to Chah Qasimwala with meals of the deceased. The deceased told them that he would first bring cigarettes from the shop of Haq Nawaz and then take the meals. As soon as he reached the shop of Haq Nawaz to buy cigarettes Muhammad Bakhsh appellant armed with carbine Muhammad Ramzan appellant armed with kassi, Mazhar Abbas appellant armed with hatchet and Shera accused empty-handed came from the side of Chah Naurang. They raised a lalkara declaring that they had come to avenge the murder of their sister Mst. Sattan. Muhammad Bakhsh appellant fired at the deceased hitting on his left upper arm. On the receipt of injuries Allah Ditta deceased ran away but all the four accused chased and over-took him near the Dhari of Arains.Shera accused caught hold of him by his arms and threw him on the ground. Muhammad Bakhsh again fired at him in the chest near the neck. Muhammad Ramzan appellant gave him two kassi blows on the neck and chest followed by hatchet injuries by Mazhar Abbas apellant on the back of left hand, right shoulder and chest. Thereafter, Muhammad Baksh took hold of Kassi from Muhammad Ramzan appellant and chopped off the head of the deceased. Mazhar Abbas and Muhammad Bakhsh appellant took hold of the head of Allah Ditta deceased and brought it to place where his horse was tethered. Mazhar Abbas and Muhammad Bakhsh appellants untethered his horse and left the spot taking away the severed head of Allah Ditta deceased and brought it to the place where his horse was tethered. Mazhar Abbas spot taking away the severed head of Allah Ditta deceased on his horse back alongwith their respective weapons. Mst. Aisha P.W. 7 Abid Hussain P.W. 9 Ghulam Ali Lambaradar (not produced) and Muhammad Shafi P.W. 10 witnessed the occurrence.

4. The motive for the offence was that Mst. Sattan mother of Hazhar Abbas is appellant and sister of Muhammad Bakhsh and Muhammad Bamzan appellants had been murdered for which Baqir husband of Mst. Sattal and Allah Ditta deceased were nominated as accused in the F.I. R Allah Ditta deceased was, however, not challaned as on Special oat n he was found to be innocent.

5. Mst Aisha P. W.7 left for‑police station but on the way learnt about the present of the police at Ahmadpur Mor. Accordingly she proceeded in that direction and made statement Exh.P.B. before Ch. Talab Ali S.I P.W.12 at 5‑15 p.m. on the same day i.e. two hours and 15 minutes after the occurrence. Formal F.I.R. Exh.P.B./1 was recorded on the basis of the statement of Mst. Aisha by Muhammad Yaqub A.S.I P.W.3.

6. After recording the statement of Mst. Aisha Talab Ali S.I. proceeded to the spot, prepared the injury statement Exh.P.M. and inquest report Exh.P.M./1 in respect of the deceased. He picked up crime empties P.5/1‑2 from the spot and made them into a sealed parcel vide memo Exh.P.F.

7. On 18‑5‑1983 Talab Ali S.I. arrested Muhammad Bakhsh, Muhammad Ramzan and Mazhar Abbas appellants. Horse of the deceased was also recovered from the possession of Muhammad Bakhsh appellant. On his pointation blood‑stained earth was secured from the river bank. Ha also led to the recovery of carbine P.8 from the house which was made into a sealed parcel vide memo Exh.P.J. attested by Muhammad Shafi P.W.10 and Ghulam Ali (not produced). On 25‑5‑1983 Muhammad Ramzan appellant led to the recovery of blood‑stained kassi P.9 from sarkanda near his house through memo Exh.P.K. attested by Muhammad Shafi P.W.10 and Ghulam Ali (not produced). On the same day Mazhar Abbas appellant led to the recovery of hatchet P.10 from Barsin crop vide memo Exh.P.L. attested by the same witnesses. The crime empties P.5/1‑2 recovered from the spot were found matching with carbine P.8 of Muhammad Bakhsh vide report Exh.PV. Of the Forensic Science Laboratory. The Kassi P.9 of Muhammad Ramzan was found to be stained with human blood by the Serologist vide his report Exh‑,.P.S.

8. Dr. Muhammad Saleem P.W.1 conducted autoposy on the dead body of Allah Ditta deceased aged 35/36 years on 6‑5‑1983 at 7‑30 a.m and found the following injuries thereon: ‑ (1) The neck was completely cut at the level of 5th cervical vertebra and the head was missing. (2) Incised wound 6 c.m. x 2 c.m. x muscle deep on the lower part of the right side of the neck. (2-A) Incised wound 8 c.m. x 2 c.m. x muscle deep just below injury No. 2. (3) Incised wound 6 c.m. x 2 c.m. x muscle deep at the level of left clavical. (4) A wound of entry of pellet 1 c. m. x 1 c.m. on the lower part of the neck close to the chest. (5) Incised wound 3 c.m. x 1 c.m. x skin deep on the upper part of the middle of the chest. (6) Two incised wounds 5 c.m. x 1/3 c.m. x skin deep and 6 c.m. x 1/3 c.m. x skin deep on the middle if the chest close to each other. (7) Four wounds of entry of pellets 1 c.m. x 1 each spread over the front of left upper arm and left elbow the margins were inverted and blackened two wounds on the left upper arm. (8) Incised wound 5 c.m. x 2 c.m. x muscle deep on the back of the right shoulder. (9) Incised wound 4 c.m. x 1 c.m. x muscle deep on the back and inner side of the left fore-arm. All injuries were ante-mortem except injury No.6 which appeared to be post-mortem. Injuries No.4 and 7 were caused by fire-arm and the rest by sharp-cutting weapons. Death was immediate and time between death and post-mortem was 16-17 hours.

9. The appellants pleaded not guilty to the charge and denied the prosecution allegations. According to them Allah Ditta deceased was of immoral character and was involved in several criminal cases place and that they had been murdered by some unknown enemy at some unknown place and that they had been falsely involved at the instance of Mst. Aisha. They admitted that Allah Ditta deceased had been implicated in the murder of Mst. Sattan but he was let off on a special oath. No evidence was called in defence. 10.Relying on the ocular testimony, the motive, the recoveries and wajtaker evidence of Ghulam Muhammad P.W. II the trial court convicted and sentenced the appellants as stated above.

11. Mst. Aisha P.W. 7 and Abid Hussain P.W. 9 claimed to have witnessed the occurrence while they had gone to Chan Qasimwala taking meals of the deceased while Muhammad Shafi P.W. 10 stated that he had Ghulam Ali Lambardar were proceeding to Chah Qasimwala from Tibianwala Basti when they witnessed the occurrence. He also testified to the recoveries from the appellants. Ghulam Muhammad P.W.11 stated theat on the day and time of occurrence he and Nawaz P.W. were proceeding from Basti Wali Muhammad to Chah Qasimwala in search of the tracks of their stolen sheep when they saw Muhammad Bakhsh and Mazhar going on a horse back towards rivers. Muhammad Bakhsh appellant was holding the head of Allah Ditta deceased. While passing near them they declared that they have avenged the murder of Mst. Sattan. Shera and Muhammad Ramzan accused were also seen by them going on their Dhari whereafter they went to the place of accuracy and found Mst. Aisha and Abid Hussain P.W presents there and they told them of having seen the aforementioned accused going to river with the head of the deceased. 12.Assailing the judgment learned counsel for the appellants has argued that the eye witness are interested being closely related to the deceased and are chance witness. They have made material improvements upon their previous statements and their evidence is in conflict with the medical evidence. Muhammad Shafi P.W. who lived at a distance of about 10 miles from the place of occurrence had no reason to be present at the spot at the relevant time. The recovery of the crime empties from the spot is doubtful because there is no are also doubtful because they were affected after about 18/19 days of the occurrence. The F. I. R is also doubtful because of having not been recorded at the police station.

13. The motive is not denied by the accused. They admitted that Allah Ditta deceased was involved in the murder of Mst. Sattan, mother of Maihar Abbas appellant and the sister of Muhammad Bakhsh and Muhammad Ramzan appellants. Though according to the appellants they were satisfied with the Nian (special oath of the deceased) but they must have nursed a grudge against the deceased on that account. Mst Aisha P.W.7 widow of the deceased and her son Abid Hussain P.W.9 have given a consistent and uniform account of the occurrence and their evidence cannot be brushed aside merely because of their relationship with the deceased: They have advanced a cogent reason for their presence at‑ the spot which in the circumstance of the case seems to be quite probable: According to them they had taken the meals of the deceased to Chah Qasimwala near which the occurrence had taken place. They stand corroborated in material particulars by Muhammad Shafi . P.W.10 who is not connected with the deceased in any manner nor was inimically . disposed towards the appellants. He lived at a distance of about two miles from the place of occurrence; not .at a distance of 10/11 miles as alleged by the defence. According to him he had gone to Tibianwala Basti to see his relative and was returning from there when he witnessed the occurrence. The defence could not shatter his evidence or show that Chah Qasimwala does not fall on way to Chak No.9/3‑L from Tibianwala Basti where he had gone on that day. He further stated that he knew the deceased Previously because he lived in the neighbouring village and that he had to get the price of the horse from him which he had sold to him. Three months before the occurrence. The ocular account stands corroborated by the evidence of Ghulam Muhammad P.W.11 Wajtakar witness There is yet another circumstance i.e, recoveries from the appellants which corroborate the eye‑witnesses. Carbine P.8 was recovered at the instance of Muhammad Bakhsh appellant which was found matching with the. crime empties recovered from the spot. The horse of the deceased was also recovered from the Dhari of Muhammad Bakhsh appellant Kassi P.9 covered from Muhammad Ramzan appellant was found to be stained with human blood. As already stated above Muhammad Shafi P.W.10 who testified to the recoveries is an independent witness and had no ill‑will against the appellants.

14. In view of some hostility existing between the parties prior to the occurrence rule of prudence requires that the prosecution evidence should be carefully scrutinized in respect of each accused. So far as Muhammad bakhsh and Muhammad Ramzan appellants are concerned we have no reason to doubt their participation in the occurrence because of the part attributed to them in the occurrence coupled with the recoveries of incriminating articles at their instance but as regards Mazhar Abbas we entertain doubt about his participation in the occurrence because of his tender age coupled with the fact that in the F.I.R only post mortem injuries are attributed to him Furthermore, the hatchet recovered at his instance was not blood stained. His case appears to be at par with Shera accused since acquitted whose acquittal has not been challenged by the State or by the complainant. Accordingly we accept his appeal. Set aside his conviction and sentence and acquit him of the charge. He shall be released forthwith if not required to be detained in any other case.

15. For the reasons discussed above the prosecution case stand fully established against Muhammad Bakhsh and Muhammad Ramzan appellants. They were, therefore, rightly convicted under section E 302/34, P.P.C. As regards sentence we consider Muhammad Bakhsh appellant to some leniency because Allah Ditta deceased though involved in the murder of his sister had not been challenged and had been let off by the police on a special oath. His case was at par with his brother Muhammad Ramzan who has been awarded life imprisonment. F Accordingly, the sentence of Muhammad Bakhsh appellant is altered from death to imprisonment for life. The sentence of fine is, however, maintained. His conviction and sentence under section 379, P.P, C. is also maintained but the sentence of imprisonment will run concurrently with the sentence of imprisonment under section 302/34, P. P. C.

16. The conviction of Muhammad Bakhsh alias Mammas does not appear to be legal under section 201 P.P.C. because he being responsible for the murder of Allah Ditta deceased could not be punished for causing disappearance of evidence with the intention of screening offender from legal punishment. After having been convicted under section 302/34, P.P.C. he could not be convicted under section 201, P.P. C. Accordingly, we set aside his conviction and sentence thereunder. The appeal of Muhammad Ramzan son of Ahmad appellant fails toto and his conviction and sentence is maintained. With the above modification in the sentence of Muhammad Bakhsh alias Mamman his appeal fails and is dismissed accordingly while the appeal of Mazhar Abbas appellant is accepted. The death sentence of Muhammad Bakhsh alias Mamman is not confirmed. M.Y.H./M-676/L Appeal dismissed.